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(222 S.W.) order had been given by the execution de-i fendant on the garnishee to pay to a certain STATE ex rel. CROW v. CAROTHERS. bank an amount greater than the fund held

(No. 13505.) by such garnishee. Such garnishee had not

(Kansas City Court of Appeals. Missouri. accepted such order. The similarity of facts

May 10, 1920.) is apparent. Since the garnishee made no object that the order was for more than 1. Statutes om 226–Adoption of statute of othhe held, the court held that it acted as an as- er state adopts its construction. signment of such fund and would prevail over A state, in adopting a statute of another the subsequent garnishment.

state, adopts the construction given it by the It is said in all such cases that the garnish- courts of the other state. ment plaintiff secures no better right than 2. Municipal corporations am 159(1)-Meaning the execution defendant has—that he merely of "voters' register" within the recall statute steps into his shoes—and where the assign- stated. ment is valid as between the parties thereto, A "voters' register,” within Laws 1913, p. the garnishee and execution defendant, it is j 528, $ 19, requiring petitioners for recall to be valid as to the garnishing plaintiff. Hendrick- qualified voters as shown by the “voters' regisson v. Bank, 81 Mo. App. 332, 336; Smith v. ter," in so far as applicable to cities of the Sterritt, 24 Mo. 260, 263. It cannot be doubt-! third class, means the record of voters at the ed that the order in question, after being last city election for mayor required to be signed by defendant and delivered to the kept by Const. art. 8, § 3; there being no pro

vision for registration in city elections for such bank in payment of or to secure a valid in

cities. debtedness, was valid and enforceable as against defendant. He could not have coun- 3. Mandamus Om76_Writ not issued to compel termanded the same or used the fund in

city clerk to certify recall petition unless reviolation of the terms of the order and the

fusal fraudulent or arbitrary. bank's rights thereunder.

Writ of mandamus will not be issued to [6] Plaintiff argues that the order here in under Laws 1913, p. 528, § 19, in absence of

compel city clerk to certify a petition for recall question is in the nature of a bill of ex- showing that his refusal to so do is fraudulent change, and does not of itself operate as an or arbitrary; his duties with reference to such assignment of the funds in the drawee's a petition being quasi judicial. hands (sections 10096, 10099); that the drawee of such instrument is not liable un

4. Mandamus em 187(4)-Objections to form of

denials cannot be raised for first time on apless and until he has accepted the same, and

peal. such acceptance must be in writing (sections 10097 and 10102, R. S. 1909). This, however, made up, and having accepted respondent's

Relator, having treated the issue of fact as is not a suit by the payee of the order, the return to alternative writ as putting the facts Bank of Neelyville, against the drawee, this at issue in the trial court, and having tried the garnishee. The liability of such drawee is case without objecting to the evidence, cannot not in question, for the drawee is not resist-object for first time on appeal to the form of ing such liability. The cases of Nelson v. the denials in respondent's return. Nelson Bennett Co., 31 Wash. 116, 71 Pac. 5. Mandamus om 187 (4)–Failure to state facts 749, and Ewing v. National Bank, 162 Ky.

to sustain application can be raised for first 551, 172 S. W. 955, are not in point, for they time on appeal. are cases based on the liability of the drawee Relator's failure to state facts to sustain of a bill of exchange arising from his con- application for writ is not waived by failure tract of acceptance of same. A suit based of respondent to raise objection in lower court; on an assignment of a cause of action and the defect being available on appeal. one based on the new contract arising from accepting the order, check, or bill of ex- Appeal from Circuit Court, Adair County; change are radically different. That an or- James A. Cooley, Judge. der, or even a bill of exchange, may be shown

Mandamus by the State, on the relation of to be and have the effect of an assignment is w. I. Crow, against J. C. Carothers. Perempthe settled law (Boyer v. Hamilton, 21 Mo. tory writ issued, and respondent appeals. App. 520; Kimball v. Donald, 20 Mo. 577, 64

Reversed. Am. Dec. 209), and when such instrument is

See, also, 214 S. W. 857. declared on and treated as an assignment, then it loses its distinctive features as a ne

A. Doneghy, of Kirksville, for appellant. gotiable instrument, and the rights of the

W. F. Frank, of Kirksville, for respondent. parties thereunder are not influenced by the negotiable instruments law,

ELLISON, P. J. This is a proceeding in The judgment rendered is for the right par- mandamus, wherein relator seeks to compel ty, and is affirmed.

respondent, who is city clerk, to certify to the

common council of the city of Kirksville a FARRINGTON and BRADLEY, JJ., con- certain petition for an election to elect a

successor to one 0. M. Hutchinson as one of

cur.

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the councilmen for said city. After a hear-fing that the alleged qualified voter, signing as ing, a peremptory writ was ordered by the a petitioner, must appear on the registration trial court.

books. The court's language is that, Kirksville is a city of the third class, and this proceeding is founded upon section 19, [the clerk] whether the names appearing upon

"The registration books will disclose to him Laws 1913, p. 528, known as the “recall” the petition are qualified electors as sbown statute, which reads as follows:

thereby. His rule for determining the quali"The procedure to effect the removal of an

fications of the electors to sign the petition is incumbent of an elective office shall be as fol- limited by the act to the names appearing on lows: A petition signed by electors entitled to the registration books. The election returns vote for a successor to the incumbent sought disclose to him the number of electors particito be removed, equal in number to at least pating in the last preceding vote cast for the twenty-five per centum of the entire vote for candidates, and enable him to ascertain whether all candidates for the office of mayor at the the number signing the petition was equal in last preceding general municipal election, de- amount to 25 per cent. thereof. *

The manding an election of a successor of the per- ordinance under which the clerk is required to son sought to be removed shall be filed with the act was drawn with the purpose in view of city clerk, which petition shall contain a general making his duties as simple as they could be statement of the grounds for which the removal made. The evidence given by the registration is sought. * One of the signers of each books established a certain and ready foundasuch paper shall make oath before an officer tion as a basis, and was doubtless deemed to be competent to administer oaths that the state the best and the simplest wbich could be sements therein made are true as he believes and cured. To permit all to sign such a petition, that each signature to the paper appended is without reference to previous registration in the genuine signature of the person whose name the city, might result in the petition being it purports to be. Within ten days from the signed wholly or to a great extent by parties date of filing such petition the city clerk shall who never before participated in any election, examine and from the voters' register ascertain and of whose qualification there would be no whether or not said petition is signed by the reliable and easily available evidence, and of requisite number of qualified electors, and if whom the clerk might be unable to determine necessary, the council shall allow him extra whether they were or were not qualified elechelp for that purpose; and he shall attach to tors. Under these circumstances, as we view said petition his certificate, showing the result it, the trial court was in error in holding as of said examination. If by the clerk's certifi- qualified petitioners those who had signed the cate the petition is shown to be insufficient, it petitions and whose names were not upon the may be amended within ten days from the date registration rolls." Chesney v. Jones, 31 Okl. of said certificate. The clerk shall, within ten 363, 366, 126 Pac. 715, 716. days after such amendment, make like examination of the amended petition, and if his certifi- This case is approved in Dunham, City cate shall show the same to be insufficient, it Clerk, v. Ardery, 43 Okl. 619, 630, 143 Pac. shall be returned to the person filing the same, 331, 335 (L. R. A. 1915B, 233, Ann. Cas. 19164, without prejudice, however, to the filing of a new petition to the same effect.”

1148) where it was said that "it was, no doubt,

intended that the names signed to the petiThe respondent clerk claims that the ap- tion should not be considered, unless they plication and alternative writ fail to state a should be upon the voters' register,” and case or ground of complaint against him un- where, at page 632 of 43 Okl., at page 335 of der this statute. It will be noticed that the 143 Pac. (L. R. A. 1915B, 233 Ann. Cas. statute requires the city clerk, within 10 days 1916A, 1148), Chesney V. Jones is quoted from the date of the filing of the petition, to from at length. "examine and from the voters' register ascer

[2] Our statute uses the term "voters' reg. tain whether or not said petition is signed by ister” as the place wbere the city clerk looks the requisite number of qualified electors,” to ascertain whether the petitioners possess and he shall attach to the petition his certifi- that requisite to a right to petition. We cate, showing the result of his examination. have no book by that name in our election Neither the application nor the alternative laws pertaining to elections in cities of the writ contains an averment that the persons third class. Nor have we any provision for signing the petition for "recall" as qualified registration in city elections for such cities. voters were shown to be such by the “voters' The statute ought not to fail for the lack of register," which the statute requires as a

a record known by that specific name. The necessary requisite to make them qualified expression, the entire section considered, unpetitioners for recall.

doubtedly means a record of the voters at [1] Our law is a copy of the statute of the last municipal election for mayor. In Oklahoma, and in adopting it we adopted point of fact, section 3 of article 8 of our the construction given to it by the courts of Constitution requires a voters' register to be that state. State ex rel. v. Miles, 210 Mo. 127, kept in all elections. It reads that: 109 S. W. 595; Knight v. Rawlings, 205 Mo. "All elections by the people shall be by ballot; 412, 433, 104 S. W. 38, 13 L. R. A. (V. S.) every ballot voted shall be numbered in the 212, 12 Ann. Cas. 325. The Supreme Court order in which it shall be received, and the of that state construed the statute as mean- | number recorded by the election officers on the

(222 S.W.) list of voters, opposite the name of the voter against the judgment, which, in view of our who presents the ballot."

conclusion, it will not be necessary to notice.

Reversed. A previous registration is not required for

All concur. municipal elections in cities of the third class, but a list of the voters is set down and kept, commonly called "poll books." We are confident that the Legislature meant such a

ONCKEN v. EHRLER. (No. 16003.) list of voters, thus required to be kept, when it used the expression "voters' register.” The

(St. Louis Court of Appeals. Missouri.

June 8, 1920.) same question was presented in the two cases we have cited above from the Supreme 1. Corporations am 175-Whether stockholder Court of Oklahoma, and the views herein

received notice of assessments held for jury. expressed are in harmony with what was

Whether holder of stock of California corthere decided.

poration, which was sold for holder's failure to [3] Another reason why the judgment

pay assessments on stock, was given notice of awarding this writ cannot stand is that the the assessments, held for jury. duties devolved upon the respondent clerk with reference to a petition for recall of an 2. New trial aww 97—That evidence on retrial

differed from that of first trial, to the surincumbent are quasi judicial, and, being so,

prise of a party, cannot be urged for first mandamus will not lie to coerce his judg

time in motion for new trial, ment, unless he has acted fraudulently or

Where evidence was introduced during rearbitrarily. State ex rel. v. State Board, trial different from that testified to on first 103 Mo. 22, 28, 15 S. W. 322; State ex rel. v. trial, adverse party, after having neither filed Cramer, 96 Mo. 75, 84, 8 S. W. 788; Dunham any affidavit, nor asked for any postponement V. Ardery, 43 Okl. 619, 632, 143 Pac. 331, to secure a copy of the testimony on the first L. R. A. 1915B, 233, Ann. Cas. 1916A, 1148; he was surprised thereby, cannot complain for

trial, nor called court's attention to fact that 2 Spelling on Extraordinary Remedies, $8 the first time on appeal. 1434-1437. We have examined the evidence preserved by the abstract of appellant and 3. New trial On98–Refusal to grant new trial the additional abstract furnished by the

for surprise by evidence differing from that relator, but in neither do we find any evi

on first trial held no abuse of discretion. dence of fraud or arbitrariness. The appel

Where defendant did not complain of being lant appears to have endeavored to perform that given on first trial, and did not ask for

surprised by plaintiff's testimony, differing from his duty under the law in all respects. postponement to secure copy of testimony given Relator makes no effort to show fraud, and at first trial, and where three juries had given neither fraud nor arbitrary conduct appears verdicts for plaintiff, refusal to grant new in any finding of the court or in the judgment trial therefor held no abuse of discretion. rendered. The only reason given in the find

4. Corporations en 120—Agreement by seller of ing and judgment is that the "said respond

stock to repurchase held based on a good conent hath not shown any just cause why a

sideration. peremptory writ of mandamus should not

Where seller of stock agreed to give buyissue."

er his money back within a year, if buyer [4] Relator has made the point in this wanted it, a new contract, entered into at the court that respondent's return to the alter- end of the year, whereby seller agreed to renative writ does not specifically and separate purchase stock within specified period of time ly deny each of the allegations in such writ, after demand after four years, held based on but contented himself with a general denial. enforce old contract being sufficient. ,

a good consideration; buyer's forbearance to Relator's reply contains the same fault. But we think that, after treating the issues of fact as made up, and accepting the pleading J. Klene, Judge.

Appeal from St. Louis Circuit Court; Benj. as putting the facts at issue in the trial court

"Not to be officially published.” and trying the case without objection to evi. dence, it is too late to make an objection to Action by Frank C. Oncken against E. H. the form of denial for the first time in this Ehrler. Judgment for plaintiff, and defendcourt.

ant appeals. Affirmed. 15] This rule does not apply to respondent's point as to failure to state facts to

Conway Elder, of St. Louis, for appellant. sustain the application for the writ, or, as it

John J. O'Connor, of St. Louis, for respondmay be said, to sustain a cause of action ;

ent. til that is a defect not waived, and an objec

on that head may be brought forward NIPPER, C. This action originated before for t.

first time in the appellate court. a justice of the peace, and is based upon a

were many other points made contract or agreement in writing, whereby Fe

ber cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The.

appellant agreed to purchase 500 shares of "Q. Did he at that time say he would take mining stock from respondent. A copy of the back the stock and pay you? A. He said he contract, which was attached to the petition, didn't have any money that time. and which we here set out, is as follows:

"Q. Did you then and there offer to deliver him the stocks, if he would pay you? A. Yes,

sir; I had the stock right there." “Contract.

"St. Louis, Mo., June 16, 1910. Defendant testified that plaintiff was al"In consideration of the purchase from me ways willing to renew the contract on each of five hundred shares of the capital stock of occasion a new contract was given for an the Reiner Mining Company by Frank H. old one; that he kept plaintiff informed conOncken, I hereby agree to purchase the said tinually of the condition of the company; stock from Frank H. Oncken within 60 days that there was an assessment of 5 cents per after demand at any time after four (4) years, share levied on said stock in October, 1913; and before the expiration of fifty-two (52) months, for the sum of five hundred ($500.00) that he mailed plaintiff copy of the notice. dollars, with interest at the rate of 6 per cent. Plaintiff, however, denied ever having reper annum from this date, less any dividends ceived any notice of this assessment under paid upon said stock.

which this stock was sold. Without detail“In witness whereof, I hereunto set my hand ing all this evidence, it seems that the life of and seal at the city of St. Louis, Missouri, this the Reiner Mining Company was short. 16th day of June, A. D. 1910.

Plaintiff's stock was sold upon his failure to "E. H. Ehrler. [Seal.) "Issued in duplicate.”

pay the assessment levied, of which he claims

to have had no notice. It was bought by the Plaintiff recovered in the justice court. president of the company for 5 cents per Defendant appealed to the circuit court, share, plus about 2 cents cost. where plaintiff again recovered. The trial Schwankhaus, testifying for defendant, said court sustained defendant's motion for new that he had discussed the affairs of the mintrial, on the ground that the verdict was ing company with plaintiff, and that they had against the weight of the evidence. On the talked about this assessment; that he himsecond trial in the circuit court, plaintiff self owned some stock in this company, and again recovered. The trial court overruled that, in discussing this assessment with plaindefendant's motion for new trial, and he tiff, he told plaintiff he was going to pay his brings the case here by appeal.

assessment, apd that plaintiff stated he felt Both appellant and respondent are resi- the same way about it, but that his wife dents of the city of St. Louis. At the time of would not let him ; that this conversation the execution of the original contract, plain- took place in 1913, after he had received his tiff was introduced to defendant by a Mr. notice of assessment. Schwankhaus. Plaintiff testified that Mr. Plaintiff, in rebuttal, denied ever having Schwankhaus was a salesman for a wooden-, had any conversation with Schwankhaus ware company, that he introduced him to about any assessment. Ehrler, at which time he was shown nuggets

At the close of respondent's case, variand gold dust, and was told that they came ous sections of the Civil Code of California from a good mine out in California. Plain- relative to the levying of assessments on the tiff stated that Ehrler insisted on him taking capital stock of corporations, and the giving some of this stock at $1 a share, and wrote of notice thereof, as well as notice of sale of out this contract or agreement; that he (Ehr- delinquent stock, and the manner of conductler) was drawing $10,000 a year, and had ing same, were introduced in evidence. plenty of money to stand back of that; that Appellant insists: (1) That the evidence of plaintiff paid defendant $500 for this stock, the levying of the assessment and the giving and defendant promised to give him his mon- of notice to the respondent was not rebutted, ey back inside of a year if he wanted it; that and the jury should have found for bim; (2) at the expiration of the year he went back and that the court erred in not granting defendasked for his money; that Ehrler told him ant a new trial; (3) that there was nothing everything was going fine, and in six months given of value as a consideration for the rethe stock ought to be worth $3 a share, and newal contract. renewed the contract for another year; that

[1] As to the first proposition urged here, at the end of the second year he went back appellant testified that he mailed the proper again, and had his stock with him, and met notice to plaintiff and paid the postage therewith the same results; that when the last on, and that such notice would have been retime was up he went back, and had this stock turned if respondent had not received it. Re. in his pocket, or had the stock in his hand. spondent states positively that he did not We here quote from his testimony:

receive such notice. The jury heard this erat

che "Q. What did you say to him? A. I told

dence, and had an opportunity to observe, him I would like to have my money,

conduct and demeanor of the witnesses while

that I had the stock bere; and he said he didn't have testifying, and we cannot say, from uis rec

facts and the money, and he was willing to give me stock ord, that the jury did not have sor. in the other company.

circumstances before it from *

Lich it may

(222 S.W.) not reasonably infer that no notice was given. Jask or expect, and the jury found against Appellant says that he mailed this notice. him. Respondent says he did not receive it; and Finding no reversible error in the record, whether appellant would have been relieved the Commissioner recommends that the judgof his obligation, if respondent had received ment be affirmed. such notice, it is not necessary to decide, but the jury could have inferred from this rec- PER CURIAM. The foregoing opinion of ord that no notice was given.

NIPPER, C., is adopted as the opinion of the [2, 3] We now come to the second point court. urged by appellant, namely, that the court The judgment of the circuit court is accorderred in not granting him a new trial on ac- ingly affirmed. count of surprise in plaintiff's testimony, where it was shown by the stenographer's af- REYNOLDS, P. J., and ALLEN and BECK. fidavit, who took the testimony of plaintiff at ER, JJ., concur. the first trial in the circuit court, that plaintiff at that trial admitted having received notice of assessments. Respondent, at the second trial in the circuit court, denied having re

SCOTT V. AMERICAN INS. CO. ceived any notice of assessments, when it is

(No. 13606.) shown by the affidavit of the stenographer, who took the testimony at the first trial in (Kansas City Court of Appeals. Missouri. the circuit court, that he admitted having re

June 14, 1920.) ceived such notice. When respondent at the second trial denied receiving such notice, ap. 1. Insurance 558(1)-Fire insurer held to pellant may have been surprised; but he have waived signing of proofs of loss by in-. neither filed any affidavit nor asked for any

sured. postponement of the trial in order to secure a Fire insurer, insured living in California, copy of the testimony given at the first trial, while the property was situated in Missouri, by but proceeded to offer his evidence in rebuttal, its course of dealing with insured's father and without calling the trial court's attention to attorney in Missouri held to have waived a rethe fact that he was surprised, and took sign proofs of loss.

quirement of the policy that insured herself chances rather on securing a favorable verdict from the jury with the evidence he had. Un- 2. Insurance en 645(3)—Waiver of policy reder such circumstances it is too late to com

quirements need not be pleaded. plain for the first time in his motion for a It is not necessary to plead waiver of policy new trial. Three juries have given a verdict requirements in order to show and rely thereon

in insurance cases. for plaintiff, and we do not think the trial court erred or abused its discretion in over-3. Evidence 581—Transcript of testimony ruling appellant's motion for a new trial on on former trial of absent witness properly this ground. Plumbing Company v. Hugunin,

admitted. 156 Mo. App. 68, 135 S. W. 967; Miller v. Where the evidence shows a witness at Rankin, 155 Mo. App. 394, 137 S. W. 15; time of second trial is beyond the jurisdiction Thiele v. Railway Co., 140 Mo. 319, 41 S. w. of the court, and that the party desiring to use

him has made unavailing efforts to locate him, 800; Bragg v. City of Moberly, 17 Mo. App.

a correct transcript of his testimony on former 221; Byrd v. Vanderburgh, 168 Mo. App. 112, trial is properly admitted. 151 S. W. 184.

[4] As to the next reason urged in grant- 4. Insurance Cw500—Valued fire policy on ing a new trial, or reversing the case, because

stored goods limited recovery. there was no consideration for the agreement

A valued policy of fire insurance on goods sued on, this court has heretofore passed up

in storage, and not subject to fluctuation in valon this proposition in the case of Grassmuck ue, limited recovery by insured after loss. v. Ehrler, 207 S. W. 287, loc. cit. 290, wherein 5. Insurance Cm665(1)-Evidence held to sus. it is stated:

tain finding of vexatious refusal to pay by

fire insurer. “Mrs. Grassmuck thereby canceled the original agreements and accepted in lieu thereof

In action on fire policy, evidence held suffinew ones under which her right to demand the cient to sustain finding against defendant insur

er of its vexatious refusal to pay. repurchase of her stock by defendant was deferred for a definite period of time. Such a contract to forbear is a sufficient consideration Appeal from Circuit Court, Jackson Counfor the new promise of the defendant to repur- ty; Thos. B. Buckner, Judge. chase. Gate City Nat. Bank v. Elliott (Sup.) "Not to be officially published.” 181 S. W. 25; Glasscock v. Glasscock, 66 Mo. loc. cit. 630."

Action by Emma E. Scott against the

American Insurance Company. From judgThe instructions given in this case are as ment for plaintiff, defendant appeals. favorable to appellant as he could possibly firmed.

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